Copyright Canada

Promoting innovation by protecting user rights and the public domain

Thursday, April 01, 2004

what is Actually going on up here

first, we have to go back a few weeks to a decision by the Supreme Court of Canada in a case between a publisher of Canadian legal materials and the Law Society of Upper Canada. The Law Society has a big library downtown, where they also provide photocopiers for use by library patrons. similar to the situation in the United States, Canadians are allowed to do things that would normally be copyright infringement because of their fair dealing rights ( fair use for you guys). Fair dealing includes quoting copyrighted works, parodies, and even verbatim copying of works when for private research or study. Accordingly, the publisher (CCH Canadian) lost its case against the Law Society, with the Supreme Court ruling that 1) merely making a device capable of infringement available does not amount to authorizing the infringement, and 2) the person making the device capable of infringement available has a right to presume that users of the device capable infringement will only use it lawfully. (I can send you a copy of the case if you want it)

second, you may recall the decision by the copyright Board of Canada last December, where in interpreting the 2003-2004 Private Copying Regime blank media levy provisions concluded that because Canadians are paying a fee to copyright owners on account of the blank media levy (basically a tax on blank CDs and MP3 players) and that since the legal regime is silent as to whether or not the source of the copy must be a legal, authorized copy, Canadians were not infringing copyright by using an "illegal source" to create a legal copy. The main illegal source in question was, of course, music downloaded from peer-to-peer networks, which is why downloading music is now legal in Canada. Canadians pay a tax on blank media, including hardware players, the funds get distributed to copyright owners, and Canadians can engage in home copying of music at will without fear of legal sanction.

Now, you will probably astutely notice that while downloading music is legal in Canada, uploading music, so far as the law was understood until yesterday, was not. Of course, this doesn't make a whole lot of sense from any policy perspective. However, Canadians continued to upload music to peer-to-peer networks, and the Canadian recording Industry Association, thinking it had the law on its side, moved to sue them for authorizing copyright infringement (authorizing infringement is one cause of action in Canada, to be distinguished from actually copying and personally infringing). To sue these uploaders, the CRIA first had to find out who they were and where they lived so they could be served judicially... which leads us to the current case between Canadian ISPs, who (mostly) didn't want to give up the personal information of their subscribers, and the CRIA, who desperately wanted to match suspected IP addresses with user names.

Of course, privacy is protected under Canadian law, and people can't just go around getting access to other people's account information without good cause. To get access, you have to convince a judge that you do in fact have such good cause, based on several factors.

Most importantly in our narrative, Justice Finckenstein refused access to this confidential user information on the basis (among others) that there seemed to be no valid cause of action on the part of the recording industry because it seemed uploading music was not illegal in Canada.

In deciding to follow the recent reasoning of the Supreme Court of Canada, Justice Finckenstein deduced that uploading music to a shared folder is not very much different than putting a self-serve photocopier in a room full of books, and that neither one amounts to authorizing infringement.

First, The person who puts music in a shared folder, just like a library offering the use of a photocopier, has the right to presume that the users of the shared folder will use it lawfully. Note that the music in a shared folder could potentially be used in infringing and non-infringing ways, according to Canadian law regarding fair dealing, Just as a photocopier can be used in infringing and non-infringing ways.

Second, and possibly more damning to the recording industry's point of view, is the fact that downloading music is not copyright infringement in Canada. Because downloading is not infringement, it logically follows that if someone were to be considered authorizing a download on the basis that they placed music in a shared folder, they are only authorizing the downloading and copying of music, not authorizing infringement. In short, authorizing illegal copying is an illegal act, but authorizing legal copying is not. Private copying of music regardless of source is legal in Canada, so authorizing such copying by placing music in a shared folder on a peer-to-peer network is merely authorizing a Canadian user to do that which they have already paid for the right to do by means of the blank media levy. Despite being a critic of the blank media levy, I'm beginning to like it more and more.